By Marcy Stamper
The citizen group that wants to keep a primitive road in the Chiliwist open to the public has asked the state Supreme Court to hear the case and to impose a stay on closing the road until the case is resolved.
A deputy commissioner for the court imposed a temporary injunction on Okanogan County’s vacation of the road on Oct. 28, in effect until a panel of Supreme Court justices decides whether to hear the case. Plaintiffs Chiliwist Residents & Friends filed a motion on Oct. 22, asking the court to take the case directly and bypassing the Court of Appeals.
Attorneys for Okanogan County and for Gamble Land and Timber, the property owner seeking a vacation of 3 miles of Three Devils Road, submitted separate replies on Nov. 2, arguing against the temporary injunction. They also argued that the case does not belong in court.
Attorneys for Okanogan County say Chiliwist Residents have no basis to challenge the road closure because none of them live on the road, meaning that closing it does not affect their access to their property.
The county also argues that the decision to close the road is part of the county commissioners’ legislative function of overseeing the county’s road network and that keeping the unmaintained road open creates a public safety issue.
As the adjoining property owner, Gamble would suffer greater injury than the Chiliwist residents if the road were open to public travel because of “actual and threatened vandalism, trespassing, poaching of wildlife and livestock, and other destruction of property,” wrote attorney Thomas O’Connell in the brief for Gamble.
Gamble Land, operated by members of the Gebbers family, petitioned the county in February to close 3 miles of Three Devils Road.
The Chiliwist Residents filed the lawsuit in Okanogan County Superior Court in June after the county commissioners voted 2-to-1 to close the road.
The Chiliwist group’s primary arguments for keeping the road open relate to what they say is its importance as an escape route and a means of getting to public land. But whether the case belongs in the courts at all hinges on a more technical matter – essentially, whether decisions about road vacations fall to county commissioners as part of their political, legislative function, or whether closing a road affects the public at large and therefore becomes a judicial matter.
As Douglas County Superior Court Judge John Hotchkiss, who heard the case for Okanogan County, put it, the commissioners were entitled to make the decision on the road and the court did not have jurisdiction to review it. People can turn to the ballot box if they’re unhappy with the commissioners’ decision, he said.
Another claim made by the plaintiffs – that the county commissioners were improperly influenced by Gamble Land and the Gebbers family – also hinges on this distinction.
Barnett Kalikow, the attorney for the Chiliwist Residents, argues that a decision that affects county residents in general – as opposed to an individual property owner – should be decided by the courts.
Three Devils Road was gated on Oct. 21, the day after Judge Hotchkiss signed the final vacation order. The stay reopening the road was issued by the Supreme Court commissioner one week later. The gates were locked on Nov. 1, but Kalikow said Gamble’s attorneys had assured him they had been opened as of Tuesday (Nov. 3). Okanogan County engineer Josh Thomson said Tuesday that he was told he could not comment on the status of the road because the matter is in ongoing litigation.
If the Supreme Court does not accept direct review, the case will be filed in the Court of Appeals in Spokane, according to Kalikow.
